Kelcee Griffis, Law360, Jan 25, 2021

Law360 (January 25, 2021, 6:04 PM EST) – A D.C. Circuit panel on Monday appeared skeptical of the Federal Communications Commission’s support for its own findings that cellphones and other connected devices pose no risks to human health.

U.S. Circuit Judge Robert L. Wilkins questioned whether the FCC properly cited two working groups under the Federal Drug Administration’s umbrella that are supposed to monitor the possibility of wireless harms, saying the FCC failed to explore how these bodies contributed to the record and to substantiate whether they exist at all.

“I’m just going to be very upfront with why I’m inclined to rule against you,” Judge Wilkins said. “Why shouldn’t I send it back for the relevant working groups and the FDA to look at this record?”

Counsel for both the FCC and the health groups challenging the wireless safety rules admitted they don’t know if an obscure, statutorily mandated FDA committee on technical standards exists. As to the second committee at issue, an interagency working group through which the FCC and FDA are supposed to collaborate on radio frequency issues, Judge Wilkins expressed dissatisfaction with underlying documents substantiating the committee’s existence and activities.

“I don’t see any mention of that working group, and I don’t see anything in the record that says that that working group actually exists or looked at any of the evidence in this case,” he said.

The lawsuit, launched in January 2020 by the Children’s Health Defense and the Environmental Health Trust, argues that the FCC’s rules governing wireless signals and technology don’t go far enough to protect consumers, especially when vulnerable populations are exposed to long-term or multiple sources of radiation.

The health groups challenge the FCC’s determination — based on what it says are multiple health and safety organizations’ input and consensus — that its wireless safety standards are still effective in protecting people from harmful mobile transmissions, even as the wireless ecosystem has expanded exponentially in recent years.

“It is simply not correct to say that the entire federal government and all its agencies are entirely aligned on this issue,” argued attorney W. Scott McCollough, who represents the health groups.

At the macro level, FCC attorney Ashley Boizelle argued that the FDA has given no indication that FCC rules designed to limit so-called thermal effects, in which wireless transmissions can generate high heat and harm human tissue, need to be changed.

The agency drew from a variety of sources to reach its conclusion that the 1996 wireless safety rules still apply to the 5G era, Boizelle said, including the World Health Organization’s representation that it found no substantial evidence of harm from fixed wireless facilities.

U.S. Circuit Judge Patricia Millett, however, pointed out that the universe of connected devices has exploded in the last 25 years. She said that by accepting some evidence that’s limited to “fixed facilities,” the FCC hasn’t necessarily addressed the potential harms of popular devices that consumers constantly interact with today and new ones that continually appear in the market.

“Is an iPad a fixed facility? Is a watch a fixed facility? Is a laptop a fixed facility?” she said. “The fixed facility stuff doesn’t feel responsive. I’m really curious about all these other devices.”

But she also appeared open to the possibility that the health groups are posing their questions to the wrong agency.

“[Petitioners] are asserting injuries that are medical,” Judge Millett said. “It almost seems like the one you should be talking to is the FDA.”

Later in the hearing, Judge Wilkins pressed the FCC on whether it too broadly construed FDA commentary that was limited to links between cellphones and cancer as proof that the FCC’s old wireless safety regulations protect against any harms that could arise from extremely close and frequent contact with 5G wireless devices.

“You are asking us to infer something that’s significant,” he said.

Boizelle responded that the FCC is working with all of the information that has been submitted to its long-running wireless standards inquiry and that the FDA groups in question never discouraged the agency from continuing to use its current limitations.

“We’re not arguing that silence should be construed as endorsement. But it shouldn’t be construed as disapproval of the agency’s existing limits,” she said.

At the end of the hearing, the panel ordered the FCC to file supplementary evidence detailing the existence and composition of the two FDA working groups by the end of the next business day.

Judges Karen Henderson, Patricia Millett and Robert Wilkins sat on the D.C. Circuit panel.

The petitioners are represented by W. Scott McCollough and Robert F. Kennedy Jr.

The FCC is represented in-house by William J. Scher, Ashley Stocks Boizelle, Jacob M. Lewis and Richard Kiser Welch.

The case is Environmental Health Trust et al. v. FCC et al., case number 20-1025, in the U.S. Court of Appeals for the District of Columbia Circuit.

–Editing by Orlando Lorenzo.

https://www.law360.com/articles/1347648/dc-circ-picks-apart-fcc-over-5g-wireless-safety-review